On 15 February 2012, a government cabinet meeting decided to table arevised version of the Bill on Inclusion before the Parliament. TheAsian Human Rights Commission (AHRC) is concerned that the provisionsof the bill, as it stands now, fail to guarantee an equalparticipation of all castes, genders, and indigenous peoples in thepublic service of Nepal. On the contrary, they serve to sanctionexisting discrimination against the most vulnerable communities, inparticular the Dalit communities, indigenous peoples and women.

The AHRC recalls that this bill is part of a process Nepal has been onsince the end of the conflict, aimed at guaranteeing greaterparticipation of traditionally excluded groups and communities instate and political structures. It was expected to reduce the strictstructural inequalities in income or human development which havepersisted between castes, genders or indigenous peoples. As early as2004, the UN Committee on the Elimination of Racial Discrimination inits Concluding Observations on Nepal had expressed concern "over theunder-representation of disadvantaged groups in government,legislative bodies and the judiciary".

Inclusion measures, guaranteeing equity and equality, are crucial inthe realization of fundamental rights of groups who have traditionallybeen more exposed and vulnerable to abuses. One of the root causes ofthe perpetuation of abuse and structural inequality has been the lackof representation of these groups; in the administrative and politicalsystems that have the power and resources to design and implementpolicies to improve the socio-economic equality in Nepal and realizethe fundamental rights of all, and in the judicial and policingsystems responsible for ensuring equal protection for all. In a reporton "Access to Justice for Dalits in Nepal", the Office of the HighCommissioner for Human Rights in Nepal identified"under-representation of Dalits in the justice and law enforcementsystem" as one of the reasons accounting for Dalits' lack of access tothe justice institutions and difficulties in claiming their rights.Inclusion measures are therefore necessary not only for socioeconomicuplifting, but also to guarantee vulnerable communities' access tolegal remedies and protection of their fundamental rights.

It is therefore very disappointing to note that the provisions of theinclusion bill have been dictated more by political considerationsrather than concern for the reality of exclusion. In its current form,the bill leaves 52 percent of the posts in the civil service open togeneral competition, and reserves 48 percent for quotas targetingspecific groups. Of that 48, 33 percent are reserved for women. Inother words, women will only be reserved a meagre 15.8 percent of thetotal civil service posts. Similarly, Dalits, who remain the mostexcluded and discriminated community in the country, have beenreserved a 7 percent share of government jobs, down from 9 percent ina previous version of the Bill. Indigenous people are awarded areservation of 25 percent of the posts, down from 27 percent in theearlier version. On the other hand, the Madeshis, all castes included,have obtained an increase to 26 percent of the civil service jobs,under the general label of "Terai dwellers".

The changes are the fruit of a political bargain and were introducedfollowing a four-point electoral agreement reached between the UnifiedDemocratic Madhesi Front and the Maoist party on 28 August 2011, priorto the election of Baburam Bhattarai as Prime Minister. Those quotasare blind to the socioeconomic reality of Dalits in the country, andreflect the relative political weight of each group, rather than theiractual needs. Once more in Nepal, concerns for human rights andequality have been sacrificed in the name of a political decision.

A policy of inclusion, especially on an issue as delicate as quotas,should be based on an accurate survey to identify the socioeconomicsituation of the targeted groups and their relative importance in thetotal population. This has not been the case here. A preliminaryreport of the 2011 population census of Nepal was published, butdisaggregated data in terms of communities and socioeconomicconditions have not yet been made public. The latest population surveywith such data dates back to 2001. Its results have been contested,notably by the Dalit civil society for not presenting an accuratepicture of the weight of their community. Even going with the 2001figure of 13 percent of the population belonging to the Dalitcommunity--although unofficial estimates go up to 20 percent--the 7percent reservation would fall short of guaranteeing theirproportional participation.

The quota set up for the Madeshi/Terai community does not includedistinctions for the different castes comprising that community,although it is one of the communities in which caste-baseddiscrimination is the most deeply entrenched in Nepal. It furtherreportedly includes indigenous peoples such as Tharu, who are alsofacing high levels of discrimination within the Terai community. Thislack of distinction may result in the quota allocated to the Madeshicommunity being monopolized by men from upper castes, embedding ratherthan uprooting the existing discrimination.

The United Nations Development Programme Nepal Human Developmentreport 2009 draws a clear picture of the structural inequalities ofthe Nepali society and of the persisting socioeconomic divisionsbetween castes and indigenous people, especially in the Madeshi/Teraicommunity. It reveals that in 2006 the Human Development Index (HDI)of persons belonging to the Brahmin/Chhetri communities -considered ashigh castes in Nepal- reached 0.552 while it was only 0.424 among theDalit community and 0.494 among all indigenous people, excluding theNewars. The HDI takes into account three indicators: educationalattainment, health measured through life expectancy and income. Thegap among the HDI of the different castes is therefore mirrored by aparallel gap in those different indicators. For instance, according tothe 2006 population survey, the life expectancy of a Hill Brahmin was68.10 years while for a Hill Dalit it was of 61.03 years only. Theaverage income of a member of the Dalit community, USD 977, was lessthan half the average income of all Brahmins/Chhetri at USD 2027. Lastbut not least, those figures also show that structural differences inaccess to education decide the Dalit access to economic, social andpolitical opportunities, with only 38 percent of all Dalit adultsliterate, in contrast to 63.65 percent of Brahmins and Chhetris.

The contrast is sharper if we focus on the Madeshi/ Terai communities:the Madeshi/Terai Brahmin/Chhetri community has a HDI of 0.625,corresponding to a life expectancy of 63.89 years, an adult literacyrate of 83.80 percent and a per capita income of USD 2333. However,the Madeshi/Terai Dalits' HDI is 0.383, corresponding to a lifeexpectancy of 61.26 years, a literacy rate of 27.32 percent and a percapita income of USD 743. Similarly, the Terai Janajati's HDI is0.470, with a life expectancy of 61.55 years, a literacy rate of 48.11percent and a per capita income of USD 1224.

All of this data speaks at length to the inadequacy of the provisionsof the bill as it stands. The most disadvantaged and isolated groups,which should be the prime target of a bill aiming at inclusion, areleft behind. It makes little sense to reserve 26 percent of the jobsto the Madeshis/Terai dwellers, without ensuring that this wouldequally benefit all castes and indigenous peoples falling under thatterm. The AHRC therefore urges the government and Nepal lawmakers torevisit the methodology used to draw these quotas, by relying on athorough assessment of the reality of the exclusion in Nepal ratherthan on a politically-motivated settlement.Document Type :StatementDocument ID :AHRC-STM-035-2012Countries :NepalIssues :Caste-based discrimination, Indigenous people, Women's rights